Li v KC Dental Pty Ltd and Ors (No.2)

[2019] FCCA 378

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v KC DENTAL PTY LTD & ORS (No.2) [2019] FCCA 378

Catchwords:
INDUSTRIAL LAW – Costs – power to award costs constrained by matters in Fair Work Act 2009 (Cth) – no conduct, by act or omission which cause applicant to incur costs – power to award costs not engaged – application refused.

Legislation:

Fair Work Act 2009 (Cth), s.570

Cases cited:

Melbourne Stadiums v Sautner (2015) 229 FCR 221

Applicant: DR YUANJUN LI

First Respondent: KC DENTAL PTY LTD

Second Respondent: DR SHI

Third Respondent DR CAO

File Number: MLG 256 of 2017

Judgment of: Judge A Kelly

Hearing date: 27-28 September, 5 October 2017

Date of Last Submission: 7 February 2019

Delivered at: Melbourne

Delivered on: 21 February 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Moray & Agnew

ORDERS

(1)There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 256 of 2017

DR YUANJUN LI

Applicant

And

KC DENTAL PTY LTD

First Respondent

DR FENG SHI

Second Respondent

DR ANNIE CAO

Third Respondent

REASONS FOR JUDGMENT

1.On 24 January 2019, I published reasons for judgment in a claim brought for alleged contraventions of the Fair Work Act 2009 (Cth): 2019 FCCA 104. These reasons should be read with those reasons.

2.Having delivered those reasons for judgment, I reserved the question of costs and gave directions regulating the filing and service of submissions respecting any question of costs.  The parties have now exchanged and filed those submissions and I have given them due consideration.

3.It was common ground that the court is constrained[1] in the exercise of power to make an order for costs in a proceeding, including a proceeding in relation to a matter arising under the Act unless, relevantly,[2] the court is satisfied that a party’s unreasonable act or omission causes the other party to incur costs.

[1]             Melbourne Stadiums v Sautner (2015) 229 FCR 221, [157]-[158] (Tracey, Gilmour, Jagot and Beach JJ, White J agreeing on this issue, [215]).

[2] The Act, s 570(2)(b).

4.Despite the applicant’s submissions, I am not satisfied that any conduct on the part of the respondents constituted an unreasonable act or omission which caused the applicant to incur costs.  Accordingly, the power to make an award of costs is not engaged in this case. 

5.The application for costs is refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 21 February 2019